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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.
Commentary -
Part IV : Civilian population
[p.1143] Part IV -- Civilian population
Introduction
4749 This Part is aimed at developing the legal protection to which the civilian population is entitled. It is based on the principles of
the law of war: in an armed conflict the object is to damage the
military potential of the adverse Party in order to obtain a decisive
advantage, and civilians who do not participate in hostilities should
be spared. In this Part we have a confirmation of treaty and
customary law on this subject.
4750 The principle of the immunity of those who do not participate directly in hostilities has in fact been recognized for a long time,
in situations of both national and international armed conflict.
Thus, in 1863, the Lieber Code already provided that "an unarmed
citizen is to be spared in person, property, and honor, as much as
the exigencies of war will permit". (1) Although it was subject to
reservation on [p.1444] military necessity, the fact remains that the
principle as such was nevertheless already recognized. (2)
4751 As regards situations of non-international armed conflict, the law of Geneva had only until now provided protection under common
Article 3
of the 1949 Conventions, which provides that: "persons
taking no active part in the hostilities [...] shall in all
circumstances be treated humanely".
4752 Since the Second World War the type of weapons developed and the widespread use of guerrilla warfare as a method of combat have
resulted in growing numbers of victims amongst the civilian
population, particularly in internal armed conflicts, which are
becoming increasingly common.
4753 This problem has been a continuous matter of concern to the ICRC, which submitted Draft Rules for the Limitation of the Dangers
incurred by the Civilian Population in Time of War at the
International Conference of the Red Cross in 1957 (New Delhi). (3)
Based on the idea that the civilian population required the same
protection, regardless of the legal qualification of the conflict,
the Draft provided a set of rules applicable both to international
and non-international armed conflicts. (4) Although this initiative
was generally well-received in Red Cross circles, it was
unfortunately not followed up by governments. (5) The fundamental
principles of protection which the draft laid down were subsequently reaffirmed, first in a number of resolutions of the International
Conference of the Red Cross, and later by those of the United
Nations. To mention the most important in chronological order, these
include: Resolution XXVIII of the XXth International Conference of
the Red Cross, and Resolutions 2444 (XXIII) and 2675 (XXV) of the
United Nations General Assembly, adopted respectively in 1965, 1968
and 1970.
4754 Ever since the United Nations began to encourage the development of international humanitarian law from 1968 onwards, it focused
attention in particular on the problem of protecting the civilian
population. The above-mentioned Resolution 2675 (XXV) reiterates and
summarizes the "basic principles for the protection of civilian
populations in armed conflicts". (6)
[p.1445] 4755 Even after the adoption of the Protocols this resolution continues to be an important point of reference. These basic
principles were adopted unanimously and can in fact be of help in interpreting the rules summarily expressed in Protocol II. (7)
4756 The problem of how to protect the civilian population was dealt with in a general way in both the United Nations and International
Red Cross resolutions, without a distinction being made between the
various types of conflict.
4757 In its first studies on a new development of humanitarian law, the ICRC retained the same approach. (8) It became clear that unduly
detailed rules for non-international armed conflicts would
undoubtedly be more difficult for governments to accept and for the
parties in such special circumstances to apply; for this reason the
principle was adopted in 1972 that two separate régimes were
needed. (9) The proposals put forward for Protocol II, though based
on those for Protocol I, were simplified. In its draft the ICRC had
taken care to make a distinction between basic rules and rules of
application so as not to jeopardize the acceptance of the
former. (10)
4758 A number of acts specifically prohibited by Protocol I are not mentioned in Protocol II; nevertheless, they may not be considered to
be legitimate. Despite its brevity, this Part significantly
reinforces the protection of the civilian population because of the
fundamental nature of the rules it lays down. (11)
[p.1446] 4759 Article 13
' (Protection of the civilian population) ' sets out first of all the general principle of protection, i.e. the immunity
to which the population is entitled under the law. This, in
particular, implies an absolute prohibition of certain methods of
combat: direct attacks against the civilian population and
intimidation (Article 13
-- ' Protection of the civilian
population, ' paragraph 2), starvation (Article 14
-- ' Protection of
objects indispensable to the survival of the civilian population ')
and forced movements (Article 17
-- ' Prohibition of forced movements
of civilians '). Civilian objects do not enjoy a general protection,
but some are protected because of their nature and function, in order
to ensure that the civilian population will be safeguarded. These are
objects indispensable to their survival (Article 14
-- ' Protection
of objects indispensable to the civilian population '), works and
installations containing dangerous forces (Article 15
-- ' Protection
of works and installations containing dangerous forces '), and
cultural objects and places of worship (Article 16
-- ' Protection of
cultural objects and places of worship '). Finally, Article 18
' (Relief societies and relief actions) ' provides for the
organization of relief actions nationally, (paragraph 1)
internationally (paragraph 2).
4760 This simple text has the advantage of not raising the threshold for application of the Protocol; the ability of the armed opposition
to respect these provisions would undoubtedly be more readily
contested if unduly elaborate precautionary measures had been
prescribed. The disadvantage is that there is a lack of precision on
practical points, which leads to a need for interpretation. (12)
' S.J. '
* (1) [(1) p.1443] F. Lieber, op. cit., Art. 22;
(2) [(2) p.1444] For the definition of military necessity, see commentary on Part IV of Protocol I, and in particular,
Art. 54, para. 5, supra, pp. 583 and 658;
(3) [(3) p.1444] Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, ICRC,
Geneva, 1956;
(4) [(4) p.1444] Ibid., Art. 2(b): the present rules apply in case of non-international armed conflict;
(5) [(5) p.1444] See the General introduction to the Protocol, supra;
(6) [(6) p.1444] "The General Assembly [...] Affirms the following basic principles for the
protection of civilian populations in armed conflicts,
without prejudice to their future elaboration within the
framework of progressive development of the international
law of armed conflict:
1. Fundamental human rights, as accepted in international law and laid down in international
instruments, continue to apply fully in situations of
armed conflict.
2. In the conduct of military operations during armed conflicts, a distinction must be made at all times
between persons actively taking part in the
hostilities and civilian populations.
3. In the conduct of military operations, every effort should be made to spare civilian populations from the
ravages of war, and all necessary precautions should
be taken to avoid injury, loss or damage to civilian
populations.
4. Civilian populations as such should not be the object
of military operations.
5. Dwellings or other installations that are used only by civilian populations should not be the object of
military operations.
6. Places or areas designated for the sole protection of civilians, such as hospital zones or similar refuges,
should not be the object of military operations.
7. Civilian populations, or individual members thereof, should not be the object of reprisals, forcible
transfers or other assault on their integrity.
8. The provision of international relief to civilian populations is in conformity with the humanitarian
principles of the Charter of the United Nations, the
Universal Declaration of Human Rights and other
international instruments in the field of human
rights. The Declaration of Principles for
International Humanitarian Relief to the Civilian
Population in Disaster Situations, as laid down in
resolution XXVI adopted by the twenty-first
International Conference of the Red Cross, shall
apply in situations of armed conflict, and all
parties to a conflict should make every effort to
facilitate this application.";
(7) [(7) p.1445] The work of the Institute of International Law may also serve as a source of information on legal
writings, since although it has no binding legal force, it
constitutes a subsidiary source of guidance that is widely
recognized internationally. It is appropriate to refer
here to the resolution adopted in Edinburgh entitled "The
distinction between military objectives and non-military
objects in general, and particularly the problems
associated with weapons of mass destruction", which lists
a number of rules for the conduct of hostilities
applicable in all situations of conflict. 53 ' Annuaire
IDI 2, ' September 1969, pp. 48-126 and pp. 375-377;
(8) [(8) p.1445] See "Questionnaire aux experts" in 1970 and the 1971 draft;
(9) [(9) p.1445] Cf. the General introduction to the Protocol, supra, p. 1329;
(10) [(10) p.1445] ' CE 1971, Report ', para. 146;
(11) [(11) p.1445] The negotiation of the articles of the two Protocols was carried out simultaneously on parallel
lines. This working method, which was followed by the
Committees of the Conference, has made it possible to use
identical terminology in the two instruments which should
avoid divergent interpretations. During the first stage
this simultaneous negotiation led to the adoption in
Committee of more detailed rules than those initially
envisaged in the draft for Protocol II. The final version
adopted in plenary meeting had been simplified, to be even
shorter than the initial draft;
(12) [(12) p.1445] In this respect the rules of Protocol I serve as a point of reference for those who will have to
assume responsibility for military operations. See Arts.
50-58 of Protocol I, and in particular, Art. 51, paras.
4-8, and Arts. 57 and 58, concerning precautions in
attack, supra, p. 609;